Thursday, May 6, 2021

Love is not blind, just myopic with onset of cataracts


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IF 39-year-old Emmanuel Macron were a Filipino being sponsored as a fiancé or spouse by 64-year-old spouse, ‘French-American’ Brigitte Trogneux, the USCIS immigration officer and the vice-consular officer evaluating his case would, at the very least, raise an eyebrow at this May-December relationship.

How can a naturalized American bring someone who is young enough to be her son, a foreign national who is a citizen of a country notorious for fraud?

France and other European countries — excluding the United Kingdom — may not be as skeptical about May-December relationships, but the United States, Canada, Australia and New Zealand are.

Sixty-eight-year-old Wayne Greenwood, resident of Auckland and a Kiwi, accuses Immigration New Zealand of ageism when the permanent residency of his Filipino partner was refused after the immigration official “made a note of the 33-year age gap between him and his Filipino partner, Liza.

Greenwood was reported by Stuff NZ a news media conglomerate in New Zealand to have obtained the details of the failed partner sponsorship under the Official Information Act.


Partner sponsorship
While there were other factors cited in the refusal, such as the applicant’s country of origin or citizenship, Greenwood’s having sponsored two Asian partners before was also given significant consideration. The Kiwi had sponsored a Thai citizen in 2001 and a Chinese national in 2012 — after he separated from the Thai partner.

To Greenwood, what stood out in the residency application refusal was the Immigration NZ official’s note about the 33-year age gap between the sponsor and the Filipino partner.

Liza’s immigration history shows that she was initially admitted as a student. She met Wayne in 2016 while pursuing a course in business. Stuff reported that Liza was ordered to return to the Philippines after her residency application was refused.

Wayne Greenwood “suspected that INZ believed his new partner was trying to use him to obtain residency,” lamenting that such an assumption was not only unfair but discriminatory.

But that is precisely what immigration laws of New Zealand, Canada, UK, the US and Australia assume based on historical data.

In a report on “Prospective Marriage Visas and Forced Marriage” submitted to the legal and constitutional affairs committee, Australia’s Department of Immigration and Border Protection (now the Department of Home Affairs), DIBP noted that over the past five years (covered by the report), “3.6 percent of prospective marriage visa holders were 19 years of age or under, with the majority of these being females.”

In addition, data from the Household, Income and Labour Dynamics in Australia survey (Hilda) for the years 2001 to 2009 reveals that “in 4.7 percent of marriages which occurred in Australia between an Australian party and a migrant, men were more than 10 years older than their partner. This compares with 3.3 percent for marriages where both parties were Australian.”

The report shows that prospective marriage applicants from the Philippines topped the list in the top 10 Australian visa offices from 2006 to 2012.

The same assumption of a not-so-genuine relationship resulted in Canada imposing a two-year conditional residency to spouse/partners of Canadian citizens or permanent residents in 2012.

The conditional permanent residence rule states that the foreign spouse/partner would have to live with the Canadian sponsor in a “genuine, marriage-like relationship for 2 years starting from the date the residency was granted.”

Failure to meet this condition could result in the revocation of the residency and deportation.

The conditional rule, however, applied only to sponsorship applications received on or after Oct. 25, 2012, or if the foreign partner had been in a relationship with the sponsor for two years or less and at the time the sponsorship application was received, the couple had no children in common.

On April 28, 2017, the government of Canada removed the conditional residency rule noting that such conditions make the sponsored spouse or partner vulnerable to abuse. In an announcement on the same day, the Canadian government confirmed its “commitment to family reunification and support for gender equality while combating gender violence.”

A similar two-year conditional residency enacted into law in the United States in November 1986 remains in the books.

The Immigration Marriage Fraud Amendment Act (IMFA) was “passed in order to deter immigration-related marriage fraud. Its major provision stipulates that aliens deriving their immigrant status based on a marriage of less than two years are conditional immigrants.”

Presumption of fraud
The presumption of fraud remains a hurdle for US citizen petitioners who file an immigrant petition for a spouse within two years of the marriage. If the I-130 spousal petition is filed after two years have passed from the date of marriage, the foreign spouse is issued an IR1 permanent residence visa instead of the CR-1–conditional residency visa.

To remove the conditional status, the immigrant spouse must apply for such removal “at a US Citizenship and Immigration Services office during the 90-day period before their second-year anniversary of receiving conditional status.”

The foreign or alien spouse must provide evidence to show that the marriage through which the status was obtained was and is a valid one. Failure to do so would result in the alien spouse being subjected to deportation or removal proceedings.

Note that the US spouse petition goes through three stages: 1) filing the petition with the specific US Citizenship and Immigration office; 2) document completion payment of fees with the National Visa Center (NVC) after petition approval; and 3) consular interview at the appropriate consular post or embassy.

Petitions for spouses are document-based. USCIS officers/evaluators check the petition file for completeness. The USCIS generally rely on the applicant and sponsor’s honesty and word of honor. While the Philippines is known to be a document fraud-intensive country, the USCIS normally does not rummage through the labyrinth of Philippine civil records with the Philippine Statistics Authority.

There is a widespread belief that a civil document with the PSA (formerly known as the National Statistics Office or NSO) is on its face value considered valid and legally binding.

Such is not the case.

The NSO/PSA staff receiving an application to register a birth, marriage or death certificate merely accepts the application with the requisite fees. The local civil registrar employees are not authorized or required to verify the authenticity or veracity of the information provided.

Once accepted and recorded at the local registrar level, the records are forwarded to the PSA for archiving. The U.S Embassy — and on occasion, the USCIS — access the PSA database online to verify the validity of a document being submitted in support of a petition or application.

In most cases, however, it is the Consular Office at the embassy level that conducts a more thorough search and in-depth interview when the visa applicant appears for the personal interview. It has also been a practice that the consular posts send investigators to the residence of applicants to verify from neighbors and acquaintances of the visa applicant the relationship between the petitioner and the alien spouse.

It is not uncommon for the embassy to conduct investigations before the visa interview. An applicant who lives with a common-law partner before, during and after a petition is filed would be charged with fraud if the applicant denies such a relationship (other than that with the petitioner) exists.

The alien spouse would be subject to IMFA for committing marriage fraud or engaging in marriage for convenience.

The age difference between the petitioner and the foreign national spouse is a trigger or red flag.

It is no coincidence that the Anti-Mail Order Bride Law was passed by Philippine Congress in 1990. This law — which expressly prohibits and consider unlawful marriage through matchmaking — superseded and repealed Republic Act 10906, or the “Anti-Mail Order Spouse Act.”

A clear indication of an arranged marriage is the age gap between the petitioner and alien spouse.

The scrutiny is even more intense when a foreign spouse appears for a personal interview with a USCIS officer during the application for adjustment of status in the US.

The USCIS Adjudication Manual cites several factors indicating that the marriage may have been contracted solely for immigration benefits. These factors include large disparity of age; inability of petitioner and beneficiary to speak each other’s language; vast difference in cultural and ethnic background; family and/or friends unaware of the marriage and a third party (e.g. marriage broker or immigration consultancies working in tandem with date matching websites) being involved in the marriage and filing of the petition.

Intense scrutiny
A foreign national applying for permanent residence as the spouse of a US citizen immediately after being arrested, detained and/or ordered to leave the US is also given significant weight.

Whether under an order of deportation or not, discrepancies in statements on questions for which a husband and wife should have common knowledge trigger further intensive scrutiny.

For example, not being able to describe what is supposed to be details the marital residence: how many rooms in the house, layout of the bedroom, which side of the bed either spouse favors, the daily activities from getting in bed, waking up in the morning until the next bedtime and what the other party’s favorite food is may appear to be simple questions but carry serious repercussions if the US citizen and alien spouse give different or varying response.

Other factors considered by the interviewing officer (whether the USCIS or consul) are: No cohabitation since marriage; the visa applicant or petitioner is a friend of the family.

The documents being presented, the paper trail establishing the relationship is important, but not as crucial as how the applicant or petitioner reacts during the interview.

The USCIS officer of consul may ask a nonlegal question: “Why do you love your spouse?”

The office or consul reads the body language, facial expression and overall demeanor of the visa applicant or petitioner.

If the applicant and/or petitioner (sponsor) can answer in an honest, straight-faced manner, without hesitation and exhibit the expected emotional underpinnings, a typographical error in a civil record from the PSA or the age difference would not matter.

Then clearly, the age becomes just a number.



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